The potential for a miscarriage of justice arising from the admission of a retracted confession and its impact on the jury's decision.

JUDGMENT

Derbyshire, C.J. - This is an appeal by one Haripada Dalai against his conviction and sentence in respect of an offence u/s 366, I. PC., that is to say, abduction. The trial was before the Additional Sessions Judge of Khulna with a jury. The facts alleged by the prosecution are these: Abala Dasi is a married girl. She did not live with her husband at her father-in-law's house but lived with her own mother where it is said her husband visited her from time to time. She is described as a beautiful girl. On the evening of 23rd April 1937, it is said that she went out on to the verandah of the house where she was living with her mother for the purpose of relieving nature. Whilst she was there she was seized by three men Haripada the appellant, Sashi and Kangla. She was taken into a jungle not far away and kept there a matter of two days where she was ravished by Kangla and also by Naren and Panchu who came from time to time. After two or three days she was taken by Panchu and Naren from this place in the jungle to a place called Bhara Simla and left near the edge of a tank. She recognized her whereabouts but did not go home. She went to the house of one Purna where she stayed one day. Purna is alleged to have locked her up when she went there, but her father coming in search of her found her, it is said, inside a room which was fastened from outside. He open. 3d the fastening and when he released her she told him the story of abduction by these persons named and the rape. As a result these proceedings were brought.

2. The Magistrate sent up four of the accused, namely Haripada, the appellant, Sashi, Kangla and Panchu for trial on charges u/s 376 and Section 366,I.P.C. When the trial in question began, the Additional Sessions Judge proceeded with the charge of rape against Panchu only and proceeded against Sashi, Kangla and Haripada the appellant, on charges u/s 366 I. P. C, namely abduction. All the charges were tried together. Sashi was found not guilty of any offence. Kangla was found guilty u/s 366,I.P.C., the appellant cinder Section 366 and Panchu u/s 376. Haripada alone has appealed. The evidence against him is that of the girl or is derived from the girl. But there is a confessional statement made by Panchu. Now, that statement is to the effect that Haripada took part in the abduction of this girl, and in her being imprisoned, if I may use the word, in the jungle and contains an allegation that Haripada was anxious to make away with the girl's life in order to prevent proceedings being brought in respect of the abduction and the rape. That statement or confession was made before a Magistrate and as so of ten happens to these statements or confessions, it was retracted during the course of the proceedings before the Judge and the jury. Now, the total evidence against the accused appellant is what the girl said and what her father told the jury the girl said when she was liberated, and which substantially agrees with what the girl said in the witness-box, and the statement or confession of Panchu. Now u/s 30, Evidence Act.

When more persons than one are being tried jointly for the same offence and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.

3. The Explanation added to the section says -' offence" as used in this section, includes the abetment of or attempt to commit the offence." Now, Panchu who made the confession was not being tried for the same offence as the appellant Panchu was being tried for rape and the appellant was being tried for abduction u/s 366, an offence committed before any rape was committed. So that this is not a case in which more than one person was tried for the same offence. Nor is it a case of Haripada being tried for abetment of rape - the offence of which Panchu was found guilty - or of an attempt to